P. v. Lilly
Filed 2/7/13 P.
v. Lilly CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
STEPHEN ALLAN LILLY,
Defendant and
Appellant.
F064124
(Super.
Ct. No. DF010445A)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court of
Deborah
Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
STATEMENT OF THE CASE
On July 1, 2011, appellant, Stephen Allan
Lilly, was charged in a criminal complaint with
(Pen. Code, § 4501.5, count 1)
felony interference with an executive officer (§ 69, count 2). The complaint alleged three prior serious
felony convictions within the meaning of the three strikes law (§§ 667, subds.
(c)-(j) & 1170.12, subds. (a)-(e)) and two prior prison term enhancements (§
667.5, subd. (b)).
On November 14, 2011, appellant
entered into a plea agreement in
which he would admit count 2 and all three prior serious felony
allegations. In exchange for appellant’s
plea, he would receive a stipulated sentence of 32 months in prison and the
remaining allegations would be dismissed and two prior serious felony
allegations would be stricken.
court determined that appellant had initialed and executed a felony advisement
of rights and change of plea form, that he had discussed his rights with his
counsel, and that he understood his rights.
Appellant waived his Miranda
The parties stipulated to a factual basis for the plea.
Appellant
admitted count 2 and all three prior serious felony allegations. The court struck two prior serious felony
allegations. On December 14, 2011, the
court sentenced appellant pursuant to the plea agreement to prison for 32
months to be served consecutively to the term he was already serving in
APPELLATE COURT REVIEW
Appellant’s
appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25
Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on April 5, 2012, we invited
appellant to submit additional briefing.
Appellant submitted a short letter questioning why he received a
sentence of 32 months rather than the statutory low term of 16 months.
Appellant
admitted three prior serious felony convictions. Following the terms of the plea agreement,
the trial court struck two prior serious felony convictions. The trial court did select the statutory low
term of 16 months, but the court used the remaining admission of a prior
serious felony conviction to double the length of appellant’s sentence pursuant
to the three strikes law to 32 months.
We note that appellant entered into a plea agreement in which the
sentence was stipulated to be 32 months, the sentence he received from the
court.
Appellant did not obtain a
now challenge the stipulated term imposed by the trial court because, in
effect, he is challenging the validity of the plea. Appellant cannot do so without a certificate
of probable cause. (People v. Hester (2000)
22 Cal.4th 290, 294-297; People v.
After
independent review of the record, we have concluded there are no reasonably
arguable legal or factual issues.
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before Levy, Acting P.J., Detjen, J.,
and Peña, J.
name="_ftn2" title="">[1] All statutory references are to the
Penal Code unless otherwise indicated.
